3 Wash. Terr. 383 | Wash. Terr. | 1888
delivered the opinion of the court.
The court below adopted as its findings of fact in this case an agreed statement of facts, presented by the parties in lieu of testimony. Bindings of fact, made by the court, and filed, are a part of the record. (Code, secs. 451 and 464.)
The point is not well taken, therefore, that the only matters of record before this court are the pleadings in the lower court and the judgment of the lower court.
Turning to the merits of the case, we find that the plaintiffs in error were claimants in the court below of certain farm machinery, seized by the defendant in error, Bowles, under execution, as the property of one Davenport; and the issue tried was, whether the property in said machinery, at the time of said seizure, was in the plaintiffs in error or in the said Davenport.
By the agreed statement, the following facts were admitted:
“1. That Davenport applied-to plaintiffs (Charles H.
“ 2. That the said property was delivered by plaintiffs to said Davenport, upon the notes or contracts marked Exhibits A, B, C, D, and E, which said exhibits are to be considered as a part of the facts in the case.
“3. That defendants Sommers and Boberts had no notice of plaintiffs’ claim.
“4. That the claims of Sommers and Boberts against Davenport are correct and regular.
“ 5. That at the time of attaching of the property by Sommers and Boberts, it was in the possession of Davenport, and he was using and operating the same in all respects as if he was the owner thereof; and that he was such owner, unless by virtue of the aforesaid contracts or notes the title remained in plaintiffs, at the time the same was attached, as against the said attaching creditor. ”
The exhibits referred to were all alike except as to dates and amounts. The following is a copy of Exhibit A:
“$300.00. Centebville, Oregon, September 1, 1884.
“ On or before October 1,1886, after date, without grace, for value received, we promise to pay to the order of Charles H. Dodd & Co., at the office of Charles H. Dodd & Co., at Portland, Oregon, three hundred dollars, payable in gold coin of the United States of America, with interest thereon in like coin from date until paid, at the rate of ten per cent, per annum.
“And in case a suit or action is instituted to collect the money above mentioned, or any portion thereof, we promise to pay, beside's the costs prescribed by statute, a reasonable attorney fee in such suit or action. The above note is given upon and for the sole consideration that the said Charles H. Dodd & Co. have agreed, and promise, that upon the payment of said note, principal and interest, at maturity, they will sell and transfer to the undersigned, A. Eillmore and D. D. Davenport, a 33-inch new model separator, which the
“Albert Fillmore,
“Centerville, Postoffiee address.
“D. D. Davenport.”
The effect of an instrument such as the above was discussed and determined by this court in De Saint Germain v. Wind, 3 Wash. 189, and it was there held that the transfer of the possession of property under such a contract did not convey the title out of the vendor. That decision was in harmony with, and was based upon, the decision of the Supreme Court of the United States in Harkness v. Russell, 118 U. S. Rep. 663.
We think, upon the facts found by the court below, that the judgment should have been in favor of the plaintiffs in error.
The judgment is therefore reversed, and the cause remanded with instructions to enter a judgment on said findings in accordance with this opinion.
Jones, C. J., and Allyn, J., concurred.
